Public Bill Committee

[Mr. Roger Gale in the Chair]
CJ01 Professor Jeremy Horder
CJ02 Information Commissioner
CJ03 Local Government Association
CJ04 Liberty
CJ05 Liberty (additional evidence)
CJ06 Law Society
CJ07 Coroners Society of England and Wales

The Committee deliberated in private.

On resuming

Roger Gale: On behalf of the Committee, I welcome the witnesses for this afternoons first evidence session. They are André Rebello, honorary secretary of the Coroners Society of England and Wales; Deborah Coles and Helen Shaw, co-directors of Inquest; Alison Cox, chief executive of Cardiac Risk in the Young; and Professor Peter Furness, president of the Royal College of Pathologists. Thank you all for joining us.

Q 83

Henry Bellingham: I have four quick questions regarding appointments and directed mainly at André Rebello and the Coroners Society. First, does the Coroners Society feel that the posts of senior, area and assistant coroner should remain freehold? Secondly, does it concern you that the Bill makes provision for the area and assistant coroners to be appointed by the local authority, rather than by the senior coroner? For example, if a local authority had an agenda because it did not have much confidence in the senior coroner, could not there be potential problems of conflict if it decided that it wanted to put its stamp on the appointment of the area and assistant coroners?
Thirdly, do you feel that it is right that medically qualified professionals will be precluded from applying for those posts? Fourthly, does it concern you that senior coroners, who effectively are very experienced members of the judiciary, will be precluded from applying for the post of deputy chief coroner, as those are all based on appointment? Those questions run together.

Roger Gale: Mr. Rebello, I ask you to respond to those questions first, then the other witnesses may indicate if they wish to come in afterwards.

André Rebello: With regard to freehold coroners, clearly the title freehold will give added independence, make it clear that coroners are not employed and, I am sure, give the public more confidence with the coronial office. Local authorities perhaps have too much control of the budget they provide to coroners and things of that nature, which will affect the coronial service. Having the office as a freehold officewhatever that meansmight give the public greater confidence.
It is right for coroners to be appointed by the local authority, or the local authority in conjunction with someone from the chief coroners office, or evenfor the senior coronerthe Judicial Appointments Commission. Thereafter, it is very difficult for someone to be parachuted in to work with the senior coroner. They have to work as a team: when the senior coroner is not there, the assistant coroners must be available. In any event, area coroners would be full-time judicial office holdersvery similar to the senior coroner.
Given that there are no national terms and conditions for coroners, the danger is that someone who happens to be on the books of the local authority legal department might be told, You are the new assistant coroner, go along and help the coroner. That would be outrageous. It is essential for the coroner to be involved in the appointment of assistant coroners.
I would be very uncomfortable about someone being appointed to work with me, to the standards that I set within my jurisdiction, if I had no control regarding whether that person had the specifications and particular abilities to carry out coronial office to the standards I want. We cannot have an assistant coroner coming in and working to different standards. It may be that the chief coroner sets the tone for the whole country, but I do not know whether that will happen overnight. I would definitely expect certain standards in my jurisdiction of Liverpool, and I would be very uncomfortable with any assistant coroner coming in. I would want to have some control.
Medically qualified coroners have provided an excellent service over the years, and manyif not allare also legally qualified. The difficulty is that, as a lawyer, one is trained to have a sense of natural justice. A lawyer can always call a doctor to give technical evidence on medical matters. It is exactly the same as a High Court judge who does not have to be a doctor when dealing with a matter of medical negligence. The difficulty arises if someone is medically qualified but not au fait with natural justice. They cannot call someone to give evidence with regard to fairness and things of that nature while they are hearing a case.
It makes some sense to have only lawyers as coroners. Nevertheless, doctor coroners have provided an excellent service and fortunately, because of the transitional arrangements, all doctor coroners will be able to continue in office. We could have a provision whereby doctors took some kind of qualification or went on a course relating to judgecraft and things of that nature. In the future, doctors may well be capable of carrying out coronial officethat is a possibility. However, in the main, the societys view is that it should probably be predominantly a lawyer post.
The society believes that the chief coroner should be a High Court judge, not a circuit judge. If a circuit judge is capable of carrying out that office, they should be promoted to High Court judge. It will require quite a bit of clout to get things moving as chief coroner, and only a High Court judge will have that.
Regarding the deputy chief coroner, I am concerned about schedule 7 because most High Court judgesleaving aside those who are involved as designated care judges in the family divisioncome from an adversarial background. They are not au fait with an inquisitorial jurisdiction and would not necessarily have a feeling for the coronial process. Furthermore, it is outrageous in this day and age to have an apparent discrimination against senior coroners and a glass ceiling that means that they can never become more than a coroner. A tribunal chairman can eventually end up as Lord Chief Justice. Why should coroners stay as coroners for their whole career?
The chief coroner will have a responsibility to keep coroners informed about changes in law and things of that nature. Those are matters that the Coroners Society currently deals with. The chief coroner will also have a responsibility for the training and development of coroners, which the Coroners Society is also involved with. In fact, the Coroners Society delivers training to coroners. If the chief coroner is going to be responsible for that, senior coroners will still be involved in those things. We may need one deputy chief coroner responsible for training, one for keeping coroners up to date and so on.
If you look at clause 30, on appeals, the first six items are about whether there has been a post mortem, whether a determination is correct, whether evidence has not been heard that should have been heard and things of that nature. Any senior coroner of 10 years standing or more is capable of turning those round very quickly.
My concern is that the chief coroners office will be staffed by civil servants and that some of those appellate judicial functions will be delegated to non-lawyers working to a script and rejecting or allowing appeals based upon pro formas. Part-time assistant deputy chief coroners working to clear backlogs would be far better, would give the chief coroner the capacity to deal with lots of things in lots ways and would keep flexibility.
It does not seem right that a glass ceiling will imposed by legislation in 2009. This country does not approve of glass ceilings in any other area and coroners are quite distressed by itnot because it affects our career development, but because the service would be better if coronial experience were used to help and develop the service.

Roger Gale: Would anyone else on the panel like to come in on those specific questions?

Helen Shaw: On the question of the deputy chief coroner, in a sense, we agree with the Coroners Society about the chief coroner being a High Court judge. We think that that is an important and welcome element of judicial oversight in the system. We understand that, if someone is to deputise for the chief coroner, they have to have the same standing, but we also understand that there is the possibility in the Bill of a number of deputy chief coroners. We are concerned about some of the very good work that is being done in the existing coroners system and the need for that to be fed into the new structure. We very much support any changes that could be made to allow existing coroners of, as André says, 10 years standing or more to apply for one of those posts.

Alison Cox: I would endorse that view very strongly.

Q 84

Tim Boswell: My first question, Mr. Rebello, is, do you envisage that the chief coroner or somebody else will mediate or adjudicate, as it were, if a dispute arises between a local authority and its coroner?

André Rebello: This is regarding how the chief coroner will influence local authorities to comply with, I think, clause 23the duty on the local authority to provide the infrastructure, accommodation and staffing that the coroner needs to carry out coronial administrative and investigative duties. One difficulty is, of course, that power is devolved to local government and local governments have to set their budgets. As well as being responsible for the coronial system, they are also responsible for childrens services, services for the elderly and lots of other essential things. From the media, we know about the tragic cases of essential services falling short. One can see that local authorities have a difficult job.
I cannot see a chief coroner turning round to a local authorities and saying, That coroner needs a court to hear this inquest and a room for the jury. The jury need separate toilet facilities. There are 12 properly interested persons and each has a solicitor or barrister who needs conference rooms, and the witnesses need privacy and bereavement rooms. You will have to provide those. If the local authority turned round and said, Sorry, we cant afford it, I do not see what the chief coroner could do. Presumably, the chief coroner could apply for judicial review. It would be very strange legislation that had built into it a safeguard giving the chief coroner the power to enforce a sanction by judicial review. One would have thought that if Parliament was considering that, it would put some sanctions in to allow the chief coroner to deal with the situation. I cannot think of any method whereby the chief coroner could control a local authority budget. It is an invidious position.
In my submission notes, I say that there is a danger of the chief coroner being made a scapegoat because we will not have a national service even with this Bill. We have a national tone to the service and national leadership, but we still have 110 or so separate legal jurisdictions serving their own local infrastructure. Of course, every coronial jurisdiction is different. Some have prisons, some have special hospitals and some have large teaching hospitals. The infrastructure and services required in each are different.

Professor Furness: From the perspective of the Royal College of Pathologists, may I pick up on a point that Mr. Rebello made? We are a little concerned that the Bill seems to put the emphasis for the office of the chief coroner on the resolution of disputes and appeals. That is clearly important, but our concern is the variation in practice in coroners courts around the country, which Mr. Rebello touched on. We hoped that the coroners office would bring a degree of harmonisation. We, too, are concerned that we cannot see the teeth or the drive in the Bill to produce that harmonisation.

Q 85

Tim Boswell: Does that remark also bind on the function of the coroners office in trying to get a degree of consistency in practice? Is that also a concern of yours?

Professor Furness: That, too, varies. I would regard that as the local responsibility of the coroner, but it comes under the same point.

Q 86

Tim Boswell: You may wish to comment on that, Mr. Rebello.

André Rebello: No.

Q 87

Tim Boswell: Before I finish, I will make two quick points about your evidence, Mr. Rebello. First, you talked about having some sense of natural justice when you were discussing whether doctors could discharge the quasi-legal

André Rebello: I am not saying that doctors do not have a statutory role.

Q 88

Tim Boswell: Is that not also true of rules of evidence?

André Rebello: Absolutely.

Q 89

Tim Boswell: I have a blank on whether my final point is referred to in the papers. Do you have any strong views that you wish to share on the age of retirement of coroners?

André Rebello: My wife does. The big difficulty I see is that each coroner, even with the Bill, has to negotiate locally for terms and conditions. It surprises the Bar and the main judiciary that I have to work for 40 years to get my pension. The judiciary has a judicial pension after 20 years. It is not surprising that, apart from the more senior members of the judiciary, most judges retire in their early 60s. Most coroners have to keep going until they are 70 or nearly 80 because they cannot afford to retire. That is an historical issue.
When I left private practice in 1999 to become a full-time coroner, after having been a part-time coroner, my income halved. At that stage, I was buying into my partnership. The money I got from my partnership paid off my loans and I had no pension. I started from scratch. If I was a circuit judge or a High Court judge, after 20 years I would have a full judicial pension. I could retire and leave it to other people to get on with the work. As a coroner, I have to pay into the local government pension scheme for 40 years. It seems nonsensical that nothing in the Bill sets national standards for terms for coroners. Parliament has an opportunity to put things right and to set the right tone. That opportunity should be taken.

Roger Gale: You had the opportunity to do some lobbying and you have done it.
I should have said this at the beginning, so, before we move on, I remind hon. Members and witnesses that we are bound by the internal knives that the Committee agreed under Mr. Cooks chairmanship this morning. That means that this evidence session must finish at 5.30 pm, the second at 6.15 pm and the third at 6.55 pm, because there will be a vote in the House at 7 pm. I hope that I do not have to interrupt anybody mid-sentence, but if I have to I will.

Q 90

Jennifer Willott: To follow on from Mr. Boswells questions, and before going on to the next subject, I have a couple of questions about resourcing.
Mr. Rebello, you were talking about what could be done to ensure proper resourcing for local coroners. What would you like to see introduced? You talked about judicial review, which is clearly not an ideal scenario. What would you like to see in the Bill that you think would get around that?

André Rebello: The Bill says that the local authority must do various things, but it does not set any standards. If the Bill referred to rules that were to be made later with regard to that type of accommodationwhat needs to be providedand if the chief coroner, when in post in shadow, could start a shopping list, if that was possible, saying that on such a date, when the law comes in, this is what we would expect every local authority to have and this is what the law expects them to provide, local authorities would have time to get ready.

Q 91

Jennifer Willott: As precise as that?

André Rebello: But I do not know what sanctions there are, because we are not having a national service. There is no point devolving power to local authorities and then telling them what to do with their money. That is the difficulty.

Q 92

Jennifer Willott: If that were not to happen, do you think that some dispute resolution mechanism should be introduced? At the moment, coroners are pretty much left to argue with their local authorities, are they not?

André Rebello: They are. To be fair to officials in the coroners unit in the Ministry of Justice, when the situation becomes extreme officials intercede and on many occasions local authorities have provided what they refused to provide in the past.

Q 93

Jennifer Willott: Is that official?

André Rebello: No, it is not official. Basically, coroners could embarrass their local authorities. You could summon the chief executive to give evidence and ensure that all the media were there. You can be very hard headed about it. That would be my style; most coroners are very nice and would not do it.

Alison Cox: To endorse what André says, I want to say that some of our bereaved families would be very happy to do that. If there was a failing of the service, they would be the ones to suffer. The coroners put the issue in place, but I do not want anyone to forget that the people at risk here, if the service is not improved, are the families. I tell you thisthey would not hesitate to cause embarrassment, especially with a bit of encouragement from me.

Q 94

Jennifer Willott: I have a couple of questions about the issue of certified inquests, or secret inquests. I wonder if anyone on the panel can give us any examples of real harm, as the wording is in the Bill, that has been done to the public interest by holding an inquest in public, or if there are any examples that anyone can give of inquests that were unable to reach a satisfactory conclusion as a result of information that could not be made public.

Helen Shaw: In answer to your question, no, there are no inquests that we know of that have not been able to reach a satisfactory conclusion. That is inquests that we know of, in terms of clause 11. There are a number of cases that have involved sensitive material and the combination of existing provisions has been sufficient to deal with those inquests concluding properly. Can you remind me of your question about real harm?

Jennifer Willott: Yes. The Bill says that one of the reasons that an inquest could be held in secret would be on the grounds of
real harm to the public interest.
Can the panel think of any examples of that?

Helen Shaw: No. We were thinking through our 20 years of working at inquests around a lot of contentious custody deaths and we could not think of any examples. We know that this clause has arisen because of two particular cases and there are very particular issues that need to be addressed. We think that the clause is much too widely drawn and we hope that we can speak to the Secretary of State for Justice and Lord Chancellor to find a more sensible solution. The clause is a hugely wide proposal, which we think is not necessary. We hope that we can find something that is much more precise, that deals with the matters that arose in those two particular cases and that will refer to issues under the Regulation of Investigatory Powers Act 2000.

Deborah Coles: Look at the inquest into the death of Jean Charles de Menezeswe will be supplying the Committee with a detailed briefing, including a case study, on thatwhich was a very high profile case involving many interested parties, a family who were desperate to find out the truth and a lot of public interest. That inquest managed to perform its vital function in terms of accountability and a jury narrative that identified any concerns.
There was evidence heard as part of that inquest that had to find alternative mechanisms other than being held in publicpublic interest immunity certificates and the like. If we look at that inquest as being an extremely good example of a high profile case where people might have suggested that there could be harm in terms of security and the issues in which it was engaged, it is an example of the coroners inquest system being able to deal with a case of such complexity.

Q 95

Jennifer Willott: My final question is about the role of families in secret inquests. Are you happy with the provisions in the Bill for the protection of families and their involvement in certified inquests? Are you reassured by what the Government said, or do you have concerns about the impact of certified inquests on the families involved?

Helen Shaw: We have huge concerns because the proposal effectively excludes the family and their chosen legal representatives from the part of the inquest dealing with the sensitive material. We think that that means that the inquest would not comply with article 2 of the Human Rights Act 1998. On a more human level, the family would be excluded even if the material goes into exactly why somebody died. We think that is wrong in terms of an inquest process that they are caught up in through no choice of their own, but through which they obviously want to find out why their loved one died.
We feel that family involvement in those cases is not sufficient, and neither is the proposal that there be special counsel to the inquest. Special counsel to an inquest is, in a sense, a friend to the court. Their role is to assist the court. They do not have a role to take up the interests of any particular person who is represented in that inquest. That is not a sufficient safeguard to ensure that the familys legitimate interests are properly protected. We really hope that some different proposals will come forward and we are encouraged by the comments made by the Secretary of State for Justicehe also found this quite a difficult set of proposals and was minded to look at amendments. At the moment the Bill does not allow the family to have access to some of the most important information about how their loved one died.

Q 96

Ian Lucas: If we can turn briefly to resources. When I dealt with coroners inquests in my somewhat distant and limited previous role as a solicitor, they tended to be held in magistrates courtsthat is the way it is set in my mind. Looking at the circumstances for witnesses, for example, is there a variation in the venues? If there is, what kind of venues are used for coroners inquests?

André Rebello: Absolutely. If I could explain: I am co-located with the registration service in LiverpoolI have a purpose built courtroom with a jury room off the courtroom. My personal office is about a third the size of this room. We have interview rooms for families, five interview rooms upstairs for advocates and two other ceremony rooms. We have lots of space for registrars to report deaths to me, we have a video presenter in court, all the equipmentloop systemsanything you want, we have got. My authority is brilliant.
Other coroners, if they hold a long inquest, will move from village hall to village hall. There is nowhere for anyone to go, they borrow magistrates courtswith families mixing with criminals in the court corridor. The inquest that has been mentioned was held at Kennington Oval, which is totally inappropriate for a coroners court. I am sure that within the court service there could have been a proper court for an inquest of such importance. The system is outrageous. In 2009 coroners should not be borrowing the same type of venue to hold a court that people would use for a silver wedding or 21st birthday party. It is just not on. Of course, the law is now there for local authorities to provide it. The difficulty is that such are the demands on local authorities that the budget is already accounted for. They are inspected in other areas and they have to deliver in other areas. There is not the spare money for them to develop a coroners system. This is all new money that needs to be found to build an infrastructure. We have also had the closing down of magistrates courts and the grouping together of magistrates benches, such that courts are no longer available because the land has been sold off. Yet we have magnificent places such as the civil justice centre in Manchester and a smaller centre in Liverpool. We have these across the country and many of them are grossly under-used. The difficulty with the current law is that coroners cannot hear a case outside their own jurisdiction. Hopefully, with this Bill coroners will be able to hear a case anywhere even if it means going across a couple of boundaries.

Deborah Coles: In terms of the number of inquests that we are involved with at the moment, one is taking place in a football ground and another in a room that is probably about a third of the size of this. There are four interested parties to that inquest and there is no private waiting space for the family. We did some research where we talked to a lot of families who have been involved in inquests over the years and so many of them mentioned how difficult it was to attend an inquest, as you would imagine, but not have any kind of private waiting space before they were about to give evidencenowhere to have a cup of tea, nowhere to meet with their lawyers. It is a real issue. We did welcome the fact that the boundary limits are going to be relaxed and maybe there can be better use. If we were talking about the ideal system, there would be purpose-built coroners courts that were able to engage with the bereaved in particular on a much more personal and humane basis.

Q 97

Madeleine Moon: Do you think it would be appropriate for a chief coroner to have powers to request or require additional resources and facilities where perhaps there needs to be a greater in-depth investigation, perhaps where there has been a cluster of deaths, so that further examination can take placeI am thinking in particular of my own constituency where we had a cluster of deaths by suicideso that the families could have a better understanding of why those deaths took place, that could inform local services, that could give some satisfaction to families as to why people have died but also do some work to help prevent future deaths? Should that be a nationally or locally based study?

André Rebello: What you are describing is the coroners system in New Zealand and Victoria, Australia. This Bill is an awful long way from there. Like we exported cricket, we exported the colonial system with the empire. Everywhere else moved on but we have stayed back in 1887. Even under this Bill, coroners look at individual cases, an individual body. There is not the facility to hold more than one inquest into one case at a time. If you have a train crashone incident that has caused many deathsthere will be different registrable particulars and a different cause of death with regard to each of the individuals. However, the means and circumstances in which those deaths occurred will be the same, so it would be a nonsense to hear that evidence several times. It is not really possible for a coroner to cluster together cases. The other thing is that individual families might not welcome it because each death is as special as any other. It does not matter if your child falls downstairs and dies or if your child dies in the street. It still hurts as much as anything can ever hurt. We are dealing with individuals hereindividual people and familiesand to cluster cases together is not right.
If there is a trend and if a few cases perhaps need an overview, it may be possible to have a public inquiry, or something of that nature looking at those circumstances together, but I am not sure that the coroner system, as mentioned in the Coroners and Justice Bill, will be able to achieve that. Perhaps the chief coroner might be able to pull together findings from a few cases and hold some kind of inquiry, but there is not the mechanism or facility for that to happen.

Deborah Coles: The coroner is right. The current system could not cope with that. But inquests are really interested in that kind of proposal. We certainly looked at this when there was a cluster of deaths in Styal womens prison, where six deaths occurred in a period of a year. We felt that rather than having a separate inquest into each of those deaths that would take place over a period of years, because of the delay in the system, an inquiry would have benefited everybody concerned.
I take on board the coroners point about each individual death being personal to that family. Of course, you should not lose sight of the fact that you would need an inquiry into the individual death. But where those deaths point to possible systemic failings and a pattern of concerns, certainly you could have a broader inquiry that would be meaningful for everybody concerned.
That leads me to an additional point on the purpose of the inquest system. The coroner mentioned the system in Australia and New Zealand. What we really like about that system is that its priority is death preventionthat is its key purposeand learning lessons. All the families that we talked to said that, although nothing will bring their relative back, they take comfort in knowing that lessons are, perhaps, learned. We are disappointed that there are not effective mechanisms in the Bill to ensure that there is accountable learning, so that something is done with regard to the outcomes of inquests: the coroners rule 43 reports and important jury narrative verdicts. There is no proposal in the Bill to deal with the collation, monitoring and publication of those things. That is an important omission.

Q 98

Madeleine Moon: On the system that is in use in Australia, two studies, coming out of Manchester and Oxford, have dealt with psychological autopsies, where the individual is the focus. So it is not a case of moving away from the individual and their death at all, but of exploring that persons death much more, to provide an understanding about why the person is dead and to look at the common links. Do you think that it would be appropriate for the psychological autopsy system, which I am particularly interested in, to sit behind the coroners system?

André Rebello: At the moment, in my jurisdiction, we have co-operated with researchers looking back through inquest files for trends. They have looked at death by self-harm, which I have not been able to say is suicide, and they have come to different conclusions, for epidemiology purposes, to prevent harm.
I do not know. All I know is that at the moment we have got to determine who died, when or where the person died and by what means, and, in some cases, in what circumstances the cause of death arose. We can hear evidence and decide the facts. If there has to be some bridging between trends in different types of cases, that is not in the Bill and not in the current law. This would be something new. Whether that would be beneficial or not, I do not know. I presume that the Office for National Statistics and the General Register Office pull together some of these things, otherwise we would not have any information for politicians to make decisions on. There must be something pulling it together somewhere.
The lessons that we have learned and the provisions that we have now in respect of rule 43 do not have any teeth. We can write letters raising issues and we can get a reply, but there are no teeth for situations where people do nothingapart from public humiliationif the incident recurs.
You are talking about something that is completely new, which is not in the current law and is not in the Bill. The chief coroner might be asked to appoint a deputy chief coroner to overview several inquests. That would be a new structure and it is not there at moment. I do not know whether it would be worthwhile because it is beyond what the coroner does now.

Q 99

George Howarth: I want to ask three questions: one to Deborah Coles, one to Mr. Rebello and one to Alison Cox. First, to Deborah Coles, have I misunderstood or are you mixing up two separate objectives? On the one hand there is an inquiry into the cause of death and on the other an inquiry into the systems themselves. That is what you appeared to be saying a few moments ago.

Deborah Coles: No. The example I gave was death in prison. Obviously inquests into those cases have to be article 2 compliant, so there is the opportunity to look at the broader circumstances beyond just the means by which the person died. So that involves an examination of policies and procedures. For example, the deaths at Styal raised a lot of concerns about the treatment of vulnerable women who were drug dependent. The majority of those women took their own lives by hanging themselves. The means of the death were quite clear. We knew how they died. It was the broader circumstances that were of key concern. That involved a lot of issues and looking at potential system failings. Those article 2 cases look at broader issues than the means.

Q 100

George Howarth: Thank you. Mr. Rebello, you made the point, and I agree with you, that even in cases where there may have been multiple deaths in one incident, each case is different. Each inquest should be about a different death, even though the overall event may have caused all of the deaths. That is an important distinction to make. There have been exceptions to that. There were a series of mini-inquests into the Hillsborough deaths which meant that they were doing eight per day. Although there was an inquest into each death, it was a shortened version. As the Liverpool coroner you will know that that caused a great deal of anguish, particularly given the insensitivity of the conduct of the coroner in those inquests. Do you think these new arrangements will do anything to improve those sorts of inquest or do you think there is scope for some further improvements for cases where there are multiple deaths arising from one incident?

André Rebello: Stefan Popper lived and worked in a different era. I suspect that what he did would have happened in nearly every jurisdiction at that time.

George Howarth: I am sure he was well intentioned.

André Rebello: I am absolutely certain he was well intentioned. The other thing I would say is that my deputy acted for 96 families in the Hillsborough inquests. There were not batches of inquests. When the inquests were opened the coroner had to receive evidence of identification. You can do that in lots of different ways. You can give everyone an appointment and have one person at a time hearing evidence about who that person was, register all the particulars so that you can issue an interim death certificate and a certificate of disposal for burial or cremation and then adjourn the case until the full evidence can be heard. Or you can deal with them in batches of eight at a time. When a coroner was dealing with cases, particularly in those days, people did not stop dying. Other people were dying at the normal rates.
On a Monday morning in Liverpool, 60 deaths can be reported to me from the weekend. I will have spoken to the police. I work 24/7. I work in the middle of the night and still work the next day. Even when I am on holiday I am working. When the coroner is faced with 96 or more deaths that occurred in one incident, the number of people who normally die in the weeks it takes to deal with those will remain the same. From a pragmatic point of view, I understand that a decision might have been made in order to continue giving a service to everyone else.
Today, that might be dealt with very differently, in the sense that coroners are enabled and encouraged, particularly by the Coroners Society, to appoint additional assistant deputy coroners. In those days, the advice from the Home Offices coroners unit, the predecessor of the Ministry of Justices coroners unit, was that the deputy and assistant deputy coroners could only work if the coroner was not working. That was the advice given by the Government. Therefore, if Stefan Popper was in court and working as coroner, no deputy or assistant deputy coroner could deal with the other cases, and that is what caused those problems. Today, you would appoint additional assistant deputy coroners to deal with work while you give time to each family to deal with the opening of the inquest.
When looking at by what means and in what circumstances those deaths occurred, you cannot hear the evidence 96 times with 96 separate juries, because you will get 96 different versions of the means and circumstances. The witnesses will give evidence differently each time and the different juries will come to different conclusions, even if they have heard the same evidence. You have to hear the bulk of the evidence for all the deaths that occurred in one incident at once, but when you open the inquest, you can open it for each individual. Today the trend would be to open the inquest for each individual, but of course those were very different times and I am sure that today coroners have moved on an awful lot.

Q 101

George Howarth: I accept that the procedure was unsatisfactory, and I attended a day at those proceedings

André Rebello: Unsatisfactory, but it was the norm throughout the country.

Q 102

George Howarth: I still think that you have not addressed the particular issue of the appropriateness of the way it was conducted. The Taylor inquiry had already concluded that the cause of the disaster was inadequate policing, yet undue attention was paid to the alcohol intake in each individual inquest. Given that the cause of the accident was already known, that was largely irrelevant. It is as much about the perception of the coroner in those circumstances as about the procedure itself.

André Rebello: That is a new point that you did not raise before. Clearly, I cannot second-guess how a coroner would deal with that case because that coroner is of course independent and has judicial discretion. The safeguardDeborah Coles mentioned this pointis to ensure that families are enabled and represented. It might not be popular, but when I am holding an article 2 inquest, I find it very strange when the family might be unrepresented or represented on a legal aid certificate, to use the old language, and the barrister is on £500, and if the prison or health services are involved, they will be represented in the same case by top barristers on top pay, and the state will be paying for everyone.
If we need to level the playing field and ensure that the coroner gets the justice and balance right, we have to achieve a level playing field. Part of the coroners role is to ensure that there is a level playing field. I am probably far more proactive when people are unrepresented than when they are represented, in an attempt to level that field, but if we are to deal with that issue, legal aid should certainly be available for inquests. It is only in the individual cases when submissions can be made with regard to the scope of the inquiry that things you raise can be dealt with. I cannot go back in history and deal with something that has occurred.

Q 103

George Howarth: All the legal aid in the world would not resolve the problem that if a coroner starts with a particular prejudice in his or her mind, it will affect the conduct of the case.

André Rebello: There was and still is a right of appeal with regard to a particular decision. I am not sure whether this is the right forum in which to deal with that appeal. We do not have all the facts and I cannot address the issues you are raising. I have no papers from the case before me. I understand where you are coming from. What you are saying is alien to my jurisdiction and to what I do. You are more than welcome to come along and sit in at any time you like.

Deborah Coles: On recognising the distress that inquests cause to such families, we were involved with many of the families and some of the academics involved in Hillsborough. What failed to happen there was proper family representation and an agreement on the scope of the inquest from the outset. That would have meant that it would not focus on aspects to do with the insensitive treatment of those families. In a sense, the bereaved were blamed for what happened. That is completely unacceptable.
Having said that, we have seen the same things happen in other cases. The system works best when families are represented and when there are pre-inquest reviews. Discussions about scope and what the inquest will look into are then agreed beforehand. That gives lawyers representing the families the opportunity to prepare them. Families recognise that there will be occasions when deeply sensitive, personal and distressing information needs to come out in public. The issue is about preparing the families for that. The relevance of that information and how it assists the process of finding out what happened must also come out publicly. Ideally, it will prevent such things happening in the future.

Q 104

George Howarth: I have a quick point to put to Alison Cox. From your point of view, are there any improvements that ought to be made to these provisions? If that is a rather big question to answer today, you may by all means submit a memorandum.

Alison Cox: I will do that, but I do not think that the question is too big. To me, the aspiration of the Bill is fantastic. The revised draft has made a big difference. The whole thing is dependent on the issue of appeal. I am aware that the appeal process is to do with the coroners verdict. That is important to cardiac risk in the young and sudden cardiac death. However, point 54 suggests that there is a wider opportunity. It is a question of the quality of the coroner. André and I have had a short conversation about this. There is a legacy of coroners embedded in the system who struggle to keep up with the standards that we would expect in 2009.
The issue is how the appeal process can be facilitated for bereaved families for whom, following a sudden cardiac death, it will take two years to register that that person has died. I would like some kind of evaluation or registration form that they can fill in which will feed into the question of whether the coroner understood their situation, was empathetic and showed sensitivities in many ways, such as how the media were dealt with. There is enormous scope for coroners to be seen by the families either as legends or as doing less than they could and should have done. Whether you can use the appeals process to register whether an inquest has been dealt with in a way that bereaved families feel to be right is very important in overseeing the ambitions of the service.

Q 105

Henry Bellingham: I have a quick follow-up question on something that has already been covered. Could paragraph 6(1) of schedule 4 on action to prevent other deaths be improved where it says that
the coroner may report the matter
when something is revealed that gives rise to concern? Should it not be an obligation to report the matter to a person who may have the power to take action? Under the schedule, that person must make a written response. What I should like to see is some follow-up, perhaps in the form of a report to Parliament. Perhaps one of the deputy chief coroners could have a specific role in collating such reports and ensuring that there is follow-up and accountability. We have touched on that matter already, but will you elaborate on how that could be improved?

André Rebello: We could not do better than follow the Victorian Institute of Forensic Medicines Fatal Facts bulletin in which all the equivalent rule 43s are pulled together. I get a monthly communiqué from Victoria setting out all the trends that have occurred, how they have been responded to and things of that nature. That will cost money and will need people to work on it. Parliament has the opportunity to invest in the system.

Q 106

Tim Boswell: Would that also cover cases of epidemic or systemic problems? I am thinking of mesothelioma, and not simply cases in which there might be some implied delinquency on the part of anyone.

André Rebello: There could be a report that pulls together inquest findings, provided that there is a requirement for the inquisitions to be communicated not only to the registrar general through the Register Office, but to the chief coroner, so that someone in the chief coroners office can write a report about inquest trends.

Deborah Coles: The other strength of the Victoria system is that there is a national database of coroners inquest findings, so that if a coroner is conducting an inquest into a restraint-related death in custody, he or she could access the recommendations and reports that other coroners have made.
In response to the question about coroners, I think that the Bill should impose a duty on the coroner to make a report when there are issues of concern with regard to preventing other deaths. Moreover, we need sanctions against authorities that fail to respond to any report. There is not much point in coroners writing reports if they are not going to get proper responses. Likewise, we should like to see enshrined in the Bill some kind of mechanism for the monitoring and scrutiny of such reports, to ensure that action has been taken to address the issues that coroners have raised. As I said to Ms Moon, that is something that is sadly missing from the Bill and would go towards the death prevention that we were talking about earlier.

Q 107

Tim Boswell: Is there a national IT system, or do we need one to enable this information to be collated and shared?

André Rebello: There is not a national IT system. Many coroners still have manual databases. Many do not have a computer system, but most are going towards one. There is one main system that most coroners use. I am very enthusiastic about having a web-based database, for which we can have a national server, mirrored several times over, so that all coroners work to that and know, at the push of a button, exactly where death investigations and inquest hearings are up to at any moment in time. That will cost money. If that is provided, there is no reason why it is not possible to introduce as soon as the system comes in.

Q 108

Bridget Prentice: I just want to ask Alison whether there is anything missing in the Bill or in the charter for the bereaved, or does she feel that they cover the issues that concern bereaved families?

Alison Cox: To reiterate, I should like to see some kind of evaluation for the bereaved. That would liberate every bereaved person. Perhaps we could have a tick box of four or five basic questions, which I could submit to Bridget, and, if you can be brave enoughand this is quite a big step

Bridget Prentice: Try me.

Alison Cox: An Any other comments section would make a colossal difference. For example, a stamp addressed envelope would provide a straightforward opportunity to find out how the system was working for the bereaved. At the end of the day, that is what the service is for. An Any other comments section might be more complicated, but it would give the bereaved an opportunity to respond. It is up to them whether they take it up. There should not be a limitation. We cannot say that the response must come back in six weeks; we should allow two years, for example, or perhaps leave it open so that people can reply any time as long as they put the date on it. That would make an enormous difference to our bereaved families, and it is something that I would very much encourage them to use to vocalise their feelings.
As you mentioned, it is really important for people to come back and tell us whether the service has been good, and I know that our bereaved families would do that. It is very humbling to hear how much they praise a coroner who has given them the opportunity to be part of that whole service. It is also frightening to see how much of a service they accept from a coroner who is perhaps questionably hanging on to his place by his eyebrows.

Q 109

Roger Gale: I am not inviting lengthy statements, but would any of our witnesses like to make any other observations?

Helen Shaw: We welcome the charter for bereaved families. However, under this new system we are concerned about how families will be given access to the support and information that they need to get through an inquest. No national service provides support to bereaved families. Although our expertise is in deaths in custody, we provide an information pack for people going through any kind of inquest. It was downloaded 15,000 times from our website last year and we are a small charity. We hope that in the new system, some thought will be given to what support is needed by bereaved families, short of legal support. A lot of people just need to be given guidance and information about what is going to happen at a very distressing time in their lives. We hope that that does not get overlooked due to the more legal issues that arise.

Professor Furness: I was hoping to discuss the medical examiner section of the Bill. Is this an appropriate point to raise that?

Q 110

Roger Gale: Absolutely. The fact that you have not been asked a question about it does not mean that you cannot answer it.

Professor Furness: We are very concerned about the way that this has been proposed. We strongly support the medical examiner system but it needs to bridge the health services and the coroner services. At the moment, we are not convinced that the balance is right. As described in the Bill, medical examiners are essentially to be appointed by primary care trusts and will be responsible to them. There is nothing on the face of the Bill about that linking into the coronial system.
I know that concerns have been expressed about the independence of medical examiners. I understand that, but we feel strongly that medical examiners must have strong links to the national health service in order to support clinical governance and ensure that they are linked in and can feed material back to the NHS. We are not disagreeing with that, but we had hoped for much better links to the coronial system. We know that it is proposedalthough it is not in the Billto have a national medical adviser to the chief coroner. We hoped that that individual could play a role in harmonising the way in which medical examiners work, much as the chief coroner is asked to harmonise the way in which coroners work. As we understand it, that link has not been made.
We also hoped that the medical examiners would have a strong role in providing a first line of medical advice to coroners locally, and that the two would work together and provide a seamless system. Although that may be expressed as a wish, it does not appear to be set out in any way. As far as I can see, coroners are not involved in the appointment or governance of medical examiners.
Another practical point is that medical examiners will be doctors and the General Medical Council will have to recertify their expertise. How is that going to be achieved? We hoped that that would all be done through the office of the national medical adviser to the chief coroner, but we do not see anything that reassures us that those links and connections will actually be made. Perhaps it does not need to be on the face of the Bill, but that leaves me a little worried. The medical adviser to the chief coroner will need powers to carry out the sort of roles that we hope he will perform. If he needs powers, perhaps that should be more explicit.

Q 111

Henry Bellingham: If you look at clause 19, you will see that the Secretary of State will be able to make a lot of regulations. In fact, throughout chapter 2 there is a lot of talk about regulations that can be made under statutory instruments. Maybe we have a skeleton here, but it needs to be built on substantially.

Professor Furness: I have had discussions with members of staff in the Ministry of Justice, which, although informal, led me to believe that this connection was not planned in those regulations. If that position changes, I will be delighted. Perhaps it does not need to be in the Bill; my concern is that the links need to be there and functioning when the system is working.

Alison Cox: May I make one more point, to endorse what I said? To offer bereavement support is extremely expensive because it is very time-consuming, and I would hate the coroners to feel that they were going to have to offer extra services of that sort to the family. I did not mean that when I said that things could be improved in the coroner service. To further Helens point, the families could be referred to the appropriate support groups for that service.

Q 112

Jennifer Willott: A lot of the changes to the certification of death and so on have come in the trail of the Shipman case. Are you satisfied that the proposals in the Bill do enough to solve the problems highlighted in that inquiry?

Professor Furness: I think that the development of the medical examiner system would do more to prevent or at least catch early the next Harold Shipman than all the work that the British Medical Association is doing on medical re-certification, and it would cost a lot less. I am strongly supportive of that, but I remain concerned that there is the potential for generating great variation across the country in how these people work, because of the lack of an overall management system, and I would like to see that resolved.

Q 113

Jennifer Willott: So a similar system to the one proposed for the chief coroner with, as you said earlier, enough power divested in both the chief coroner and the national medical adviser to enforce much clearer national standards.

Professor Furness: I see the relationship between the chief coroner and the coroners being paralleled by the relationship between the national medical adviser, the chief coroner and the medical examiners.

Q 114

Tim Boswell: Presumably it would help if they were co-located, or at least able to talk to one another from time to time.

Professor Furness: The location of medical examiners will need to be planned carefully to deliver a speedy service and not delay burials.

Q 115

Tim Boswell: At the national level as well.

Professor Furness: Yes indeed.

Q 116

Tim Boswell: On the certification points, you referred to the quinquennial certification of competence by the GMC as being welcome in general terms, but you emphasised the different weight you gave to the importance of that matter. What I am not clear about is whether you were saying that under the present concept the GMC would look at the persons competence as a doctor rather than as a registered medical officer dealing with a particular case in connection with coroners, and that the specific expertise would not be examined sufficiently.

Professor Furness: If I understand you correctly, in specific relation to the Shipman case, Harold Shipman was an intelligent doctor who was much liked by his colleagues. It was the statistics that should have caught him much earlier, because he was doing his own certifying.

Q 117

Tim Boswell: So you need a bag of skills that is precise and that is regularly renewed and testable as being so.

Professor Furness: Yes.

Q 118

Brian Iddon: May I ask the same witness how much attention he thinks we should give to providing the medical examiner with detailed accounts of what medicationwhether legal or controlled drugsthe person was on immediately prior to death, bearing in mind that quite a number of people now purchase their drugs through the internet?

Professor Furness: I have been involved with staff in the Department of Health and with the Academy of Medical Royal Colleges in drawing up proposals for training medical examiners and for the procedures that they will in general terms be expected to follow. We have anticipated that they should have complete access to the medical records and details of any prescribed drugs. In relation to access to details of other sorts of drugs, if you are referring to illicit drugs being involved in the cause of death, the medical examiner should surely refer such a case immediately to the coroner and not try to investigate it him or herself. Similarly, if a noxious substance may have contributed to someones death, the medical examiner should not be examining that caseit should be passed to the coroner, and I suspect Mr Rebello would agree with that.

André Rebello: This is a separate point but I would be grateful if the professor would comment. I heard of a case the other day where a family were disgruntled and dismayed. A relative had died, and after the medical practitioner had written the cause of death down on the death certificate, the family pushed for a post mortem. There was one, which revealed a different cause of death. However, the registrar could not change the original cause of death on the certificate; he could only add an annexe or an addendum. The family have told me that that has caused great distress, because the post mortem revealed that he died of a particular cause. It just completely staggers them that the change cannot be made on the certificate. I would be grateful if the professor could comment. Is it something we should be looking at?

Professor Furness: My understanding is that the proposed reforms should resolve that sort of situation, in that the death certificate will initially be filled out by the certifying doctor, but will then be passed to the medical examiner for scrutiny. That scrutiny will involve discussion with the relatives, if appropriate, so that concerns could be raised at that point, before the certificate of the cause of death was finalised. In terms of gathering national statistics, there is already a route through which additional findings as to the cause of death can be fed appropriately into the statistics. However, I defer to your experience of what happened in terms of what was written on the piece of paper.
Of course, the other aspect is that if the relatives are concerned that the cause of death is inaccurate, that could well be a good reason for the medical examiner to refer the case to a coroner for appropriate investigation, depending on the discussion that happened at the time. I would hope that the medical examiner would be in a position to discuss, mediate or resolve problems and avoid the whole scenario that you have described, to the benefit of all concerned.

Q 119

Henry Bellingham: That is helpful, if a certificate has already been issued with the cause of death on it. I am talking about having that certificate changed.

Professor Furness: In future, the certificate would not be issued until the relatives have had the opportunity to discuss it with the medical examiner. One of the key questions the medical examiner will be expected to put to the relatives is whether anything on the proposed death certificate is a concern.

André Rebello: Coroners since 1887 have become inventive and imaginative, because we have had to make the law fit the era in which we work, and not Victorian times. If that scenario happened in Liverpool, given that I am co-located with the registration service, once a death has been registered, the registrars rules say that the registrar can only put a marginal note in if there is a correction. What I would do in those circumstances is hold an inquest after ordering the post mortem and before getting the result. I would then use the result to conclude the inquest, and a new death certificate would supersede the old one. That is possible now, and it would be even more possible with the Coroners and Justice Bill. Those sorts of practices will be one way to fix an error, if the registration system is not changed so that errors of that nature can be altered.
There is no point in giving a family an old death certificate with lines drawn through it and marginal notes around the outside. The family want the cause of death, not any cause of death. It is fixable now, certainly in my jurisdiction, because of the resources that Liverpool gives me, because I am co-located with the registration service, and because you can be imaginative by ordering the post mortem, not knowing the cause of death and opening an inquest. You then get the cause of death and conclude the inquest. It is a fiction, but it is a way of correcting the death certificate. That will be possible in the future.

Deborah Coles: Can I just mention something that André touched on earlier, which is not in the Bill at all, namely the question of public funding for families to be represented at inquests, particularly in those cases involving public authorities or article 2 cases. I raise that because we welcome the fact that the Government have recognised the rights of bereaved people through this process and the importance of ensuring that families have access to information about how to negotiate the coroners inquest system. But there is nothing in the Bill about non-means-tested public funding for families, which is in stark contrast to the situation of Government-appointed lawyers, who represent the state at inquests all over the country and who are paid for out of public funds. You can have a situation such as André described where you have counsel representing the state interests, while the family are unrepresented and alone. Although there is exceptional public funding, it is extremely difficult for families to access. It is means-tested, which essentially means that anyone living in London who happens to own their own home does not qualify. That is something that causes untold distress. We have had families who have withdrawn from an inquest, which, after all, is what they have been given as their opportunity to find out what happened. But they have withdrawn from the process because it is so intrusive and bureaucratic. I urge the Committee to give that some attention, because we feel strongly that that would go towards making the inquest system a much better one for bereaved people.

André Rebello: I have three short points. The first is that I support Professor Furness with regard to medical examiners. I am sure that the statutory instruments, regulations and guidance will ensure that coroners are involved in medical examiner appointments, because, unless there is a close relationship, the new system will not workcertainly the Coroners Society will make sure that it works.
Secondly, I have concerns regarding matters to be ascertained at an inquest in clause 5, because the draftsman has taken the words of Lord Bingham in the Middleton case and enshrined them in clause 5(2). If the House of Lords or the European Court were to in future change what is necessary for convention rights to be recognised in the inquest process, this law will be out of date. It is far better to leave clause 5 as how, where how means in some inquests by what means and in other inquests by what means and in what circumstances, if article 2 of the European convention on human rights or other articles of the Human Rights Act 1998 are engaged, to enable the common law to develop that area of human rights legislation. The human rights legislation came in and by enshrining in what circumstances in this statute, if the House of Lords found that article 2 required something different, coroners would be stuck with the statute because of the primacy of Parliament.
The difficulty that I see is that there would then have to be a public inquiry in each and every case to deal with the procedural obligations on the states to comply with treaty obligations under human rights legislation. It would be far better to leave out clause 5(2), so that how means whatever the common law says it means for the time being. If we are now reforming the 1887 legislation, I am fairly sure that in 2051 the law will have developed somewhat, and I do not think it right to tie the hands of the European Court and the House of Lords with regard to developments.
At the moment, we have a two-tier system. It may well be that one of those is the right system for all, and it may well be that the law needs developing. We do not know what Europe will say. I am fairly sure that Coroners Bills are not like busesthere will not be another one along in a minute. I advise very strongly that clause 5(2) should be left out, because this Bill complies with convention rightsit says so at the front. Therefore, how means whatever it means for the time being.
The other point that I raiseit is very personal to my jurisdictionis that of anonymity and investigation provisions, whereby justices of the peace can make a witness anonymity order. Rhys Jones was killed in my jurisdiction, and a person has been convicted of murder and is serving a life sentence. Had that person died in custody before trial and had people giving evidence against him had one of these orders made because they were members of a gang, where would I go to hear the full evidence when I had to hear an inquest as to the means and circumstances in which Rhys had died to give justice not only to the family, but to the whole community? This provision was spotted in the back of the Bill, and there has been no consultation with regard to it. Once a justice of the peace has made that order, the criminal process can stop for many reasons, including the accused dying or some other reason why the trial cannot go ahead. Currently, under section 16, the coroner would resume the inquest and the coroners jurisdiction would hear by what means and in what circumstances that cause of death has arisen.
Are coroners going to be designated as people involved in public administration, so as to be able to be given that information, if such an order has been made? At the moment, we can deal with public privilege immunitysection 11 deals with secret inquests. There is a sliding scale in that respect, and it is a judicial function to decide whether such matters are heard behind closed doors and whether some people are excluded or not excluded. In extreme cases, a full hit will be needed, but no one has yet been able to give me one example where that would apply.

Roger Gale: Thank you, Mr. Rebello. You have left the Committee with a certain amount to think about.
Mr. Rebello, Helen Shaw, Deborah Coles, Alison Cox, Professor Furness, thank you all very much indeed for coming and for affording us the benefit of your opinions and your experience. Parliament is indebted to you.
I hope that the buses come along. Have a safe journey home.

Roger Gale: I welcome Anita Coles and Isabella Sankey from Liberty. I invite David Howarth to put the first series of questions to you.

Q 120

David Howarth: I want to ask about secret inquests, data protection and the information-sharing orders in the Bill. I invite you to give the Committee your view of clauses 11, 12 and 13 on certifying jurorless inquests.

Isabella Sankey: We have grave concerns about the clauses 11 to 13 governing secret inquests. We regard these as breathtaking measures, which have been reintroduced after being deleted from the Counter-Terrorism Bill last year with very little consultation. Our view is that the grounds on which a certification can be made have been broadened, despite the cross-party opposition to the proposals when they were first brought in. Our concerns about these proposals are manifold.
The starting point is that we are talking about Executive control over whether juries can be convened at inquests. We do not see any cause for the Executive to be involved. We think that it would breach article 2, which requires investigations to be impartial, and it would also mean that the bereaved and the public were excluded, also breaching article 2. We do not see how the proposals could be compatible with it.
On safeguards, there is a provision for judicial review in the Bill, although, that was always possible under the previously drafted provisions. As the judicial review would be on whether something was in the public interest, we think that it would be extremely difficult to challenge the inquest in practice. We do not regard it as a safeguard at all.

Q 121

David Howarth: On the relationship between the publicity of the inquest, whether the family is allowed in and article 2, are there are any circumstances in which an inquest could be held in camera or, as the Government say, are there extreme circumstances in which it could happen, but you believe that it needs more safeguards or conditions?

Isabella Sankey: We are saying that there are no circumstances in which an inquest in an article 2 scenario could be helped with a blanket prohibition on a jury. There are, of course, measures to exclude certain bits of information from the public, from families or from any individuals whom the coroner decides need to be excluded in the interests of justice We do not take issue with the use of the special measures available to coroners, but we do not see how any of the reasons put forward justify the blanket prohibition of a jury and the involvement of the Executive in deaths, which are likely to be extremely politically contentious.

Q 122

David Howarth: So you are distinguishing between the exclusion of the jury and measures to keep information out of the public domain. Those are two separate issues.

Isabella Sankey: Absolutely. In our view there is nothing really that should distinguish the operation of coroners courts from how juries operate in a criminal context, where, of course, public interest immunity certificates can be issued and there are special measures for witnesses. We have seen that operating in the coronial system for decades, and we do not see any arguments to justify any more exceptionality in that area.

Q 123

David Howarth: What about the suggestion that juries could be vetted, as they are in the criminal justice system, for espionage and terrorism trials? That is a possibility under the Attorney-Generals guidelines on jury checking. Could that be applied to the coroners court?

Isabella Sankey: In principle, we would not take issue with measures that already exist in the criminal justice system being introduced into the coronial system. We do not see that there is a principled area to differentiate, as it were. With the measures that are already possibleexcluding certain persons or pieces of informationwe do not see why further measures are necessary in that context.

Q 124

David Howarth: Can I move on to data protection and the information sharing aspects of the Bill? What do you think of those information-sharing aspects? Are they compatible with human rights protection?

Roger Gale: Just before we move on to data protection, are there any other questions relating to the first line of questioning?

Q 125

Tim Boswell: I wonder whether there is an alternative approach to what you say, as I understand it, must include an absolute right to have jurors and the handling of evidence within already set precedentsI think that that would be a summary of where you are. I am relatively fresh to it, but one of my concerns is that the Secretary of State is the certifying authority. Would it be at least a compromise, if not a halfway house, to say that the Secretary of State could not certify, but could apply to a High Court judge to certify that such an inquiry was appropriate? That would be a safeguard, as it were, so that one would not have the potential moral equivocation of the two capacitiesthe Secretary of State as a member of a Government which might have authorised something which led to a death in custody, for example, and at the same time being able to fix the inquiry so that it would not cause embarrassment to that Government. Could you take the decision process, if the Government think it is essential, out of the hands of Government itself?

Isabella Sankey: The involvement of the Executive in the way that you describe would still be extremely problematic in terms of independence. In terms of public perception, as I said earlier, we are talking about inquests into what are often the most contentious of circumstanceswhere people have died at the hands of the state. Any involvement of the Executive in trying to keep the surrounding circumstances of those deaths secret would be hugely publicly contentious and would have enormous implications for public trust and public confidence.

Q 126

Edward Garnier: The Secretary of State for Justice, Mr. Straw, and, I believe, Ministers on this Committee, have from time to time batted the matter back to those of us concerned about the principle of these secret inquests, including yourselves, asking what we would suggest; there must be occasions when it is in the national interest, for one reason or another, that certain information that might be relevant to the inquest is not disclosed to the public, and sometimes not even to the families. Do you have a bedrock principled objection to the types of inquest suggested under clause 11, or may there be occasions when some form of inquiry into a death has to be conducted without full public knowledge of what is heard by the tribunalbe that a High Court judge or another form of coroner?

Isabella Sankey: In terms of what is currently available under public interest immunity certificationI think that really answers the point that you are making concerning knowledge of matters which are a cause of enormous sensitivity when it comes to national security and so on. We do not see why there should be any difference between the arrangements that are currently in place in the criminal justice system, whereby the judiciary can hear ex parte applications from the prosecution as to why the existence of certain information cannot be revealed to the defence, let alone the subject matter of that information. I do not really see a problem with keeping certain information secret, and that can be accommodated within the system of jury inquests.

Q 127

Edward Garnier: You were not in the Chamber of the House of Commons this afternoon during Justice questions, but one of the answers that the Secretary of State gave when Opposition Members were putting precisely those points to him went broadly along these lines: with a prosecution, if the Crown wanted to keep something secret and the judge or the criminal court is not amenable to an application for PII or any equivalent, the prosecution has the discretion not to proceed with the prosecution. There is no such discretion with an inquest; the coroners system requires that the death is looked into. Do you think there is anything in that distinction, or do you think the Secretary of State is perhaps not thinking this through carefully enough?

Isabella Sankey: I think definitely the latter. It is completely illogical to argue that the state is entitled potentially to breach its article 2 obligations in order to fulfil its article 2 obligations because they have to continue with the inquest. That argument is tautological and does not really hold up. I would also argue that the state does not have the prerogative to stop judicial review proceedings, where PII certificates are issued. We are talking about exactly the same kind of scenario that you have in inquest proceedings, so I do not think that that distinction holds any water.

Q 128

Edward Garnier: Have you been able to enter into any direct discussions with officials or Government Ministers about your concerns, other than by kindly supplying the Committee with you written concerns?

Isabella Sankey: We always engage with the Government on anything that they are bringing forward, and we try as far as possible to offer alternatives and to get them to hear our suggestions.

Q 129

Edward Garnier: What has their response been to your suggestions?

Isabella Sankey: I understand that, as with any Bill, there will be a chance for amendment and a chance to look again at some of the provisions introduced. We hope to engage further on it.

Q 130

Edward Garnier: But you have not had face-to-face discussions with Ministers or officials.

Isabella Sankey: Yes, we have.

Q 131

Edward Garnier: You have. And they said that you should wait for the Bill.

Isabella Sankey: We should wait for the Bill scrutiny process.

Q 132

Edward Garnier: You must be hugely confident that what you are proposing will be included in the Bill.

Isabella Sankey: We are hugely confident that there will be enough cross-party opposition to the proposals contained in clauses 11 to 13 that we will be able to negotiate with the Government on their proposals.

Q 133

David Kidney: Are you saying that if the stakes are extremely highfor example, a persons life depends on their identity not being disclosed, or a terrorist might learn how to avoid detection if he learns how another person was detectedthe inquest should go ahead with a jury, and that the jury would not disclose such information to anyone at the end of the inquest? Or are you saying that there are sufficient safeguards for such information to be kept from the jury? I am not clear on that crucial point.

Isabella Sankey: Absolutely. Often there are very high stakes in such proceedings. Our point is that safeguards are already in place to ensure that certain individuals are not identified and that various bits of information are kept from the jury or the public when such inquests are held. In fact, it was in the case of McCann and others v. United Kingdom that article 2 obligations in circumstances where somebody has died at the hands of the state were first developed by the European Court of Human Rights. In that case, an inquest had taken place and certain information about the security personnel involved in what was, ultimately, the killing of suspected IRA terrorists was kept from the jury. There were no problems in that case in respect of how the inquest had proceeded. Article 2 obligations were fulfilled, peoples identities were protected, and the balancing act was achieved under the current inquest system.

Q 134

Madeleine Moon: I would like to ask a question about a situation that is not at all politically contentious. If a child dies or a child commits an offence, their identity would be kept confidential in the court proceedings. The media would be excluded from the court and would not be able to report on their identity. Families have told me about being extremely distressed when their childs death was reported in the media. Do you think there could be a scenario in which families could request that confidentiality in respect of reporting be upheld in a coroners hearing in a case where a child has died?

Isabella Sankey: I do not see any problem with family involvement or the opportunity for families to make representations. In fact, although we object strongly to clauses 11 to 13, as I have outlined, we welcome the way in which the Bill recognises the involvement of the bereaved with the charter and so on.
The kind of judgments where confidentiality is at stake are often best left for judicial control. Judges can undertake a balancing exercise in the interests of justice and decide whether certain pieces of information about the identity of the person or the circumstances in which they died should be revealed and how much information should be given. Such matters should be assessed on a case-by-case basis and coroners should have discretion.

Q 135

Tim Boswell: I am grateful for these exchanges. Given my lay status, could you walk me through the situation that might apply? We know that there is sensitive information, and that there may be individuals whose identity is sensitive and may be more readily protectable, but, of course, the evidence is important. If it is under a public interest immunity certificate, depending on the nature of that certificate, it will not be disclosed to the jury. If that is the case, how can the jury come to a verdict if they have not heard all the evidence? I take itI am trying to complete my own thought processthat in a criminal case, a judge will have heard that information and will incorporate it into his or her summing up to the jury. In a coroners inquiry, there is obviously a slightly different procedure. That would concern me not least because we still haveand the Bill will provide forvested rights for some non-judicially qualified coroners to continue. Perhaps that would not apply in this special case because it requires the appointment of a High Court judge. Is there a worry that you would not be able to get the information out of protection to whoever was making the decision with regard to the inquest? First, can you confirm that I have more or less understood what is happening, and, secondly, give me your assurance that it could work?

Isabella Sankey: Yes, you have absolutely understood the position. Obviously the situation in which a jury is not able to have access to all the information is not a perfect scenario for an inquest to take place. The key to reflecting the lack of knowledge of the jury is in the verdict and the way in which it is phrased. That brings me on to some of our other concerns about the Bill, which include allowing for short verdicts to continue. In our experience, narrative verdictsparticularly in situations in which the state has been implicated or responsible for the death of a personare a lot more satisfactory for the bereaved and really help with their sense not necessarily of closure but that justice has been done and that their hurt has been recognised. In the situation that you are talking about, a narrative verdict given by a jury could state that not all the information was put to them or that certain things were excluded. That could be an exercise that is negotiated between a coroner and a jury.

Q 136

Bridget Prentice: Going back to clauses 11 to 13, I disagree with your description of it being exactly the same as a criminal case. I fundamentally disagree with you that a coroners inquest could be treated in exactly the same way and that PII certificates could be used. Given that two inquests are stalled because of sensitive information, are you saying that there is never an occasion when that can happen, or do you accept that there is a problem, but disagree with the way in which we are trying to fix it?

Isabella Sankey: We disagree with the way in which you are trying to fix it. I do not have the details of the two cases that you are talking about to hand, but I imagine that they might potentially involve the use of intercept evidence, and that might be one of the reasons why they are being stalled. I understand that under clause 15 of the Bill, although the bar on intercept is being removed in the case of inquests, the general bar remains. The removal of that bar would do a lot to allow inquests containing sensitive information to go ahead. We would argue that public interest immunity certificates could enable that material not to be compromised. We fundamentally disagree that the Executive should be involved in certifying that juries should not sit on a particular inquest along the lines of a principled opposition to the responsibility of the state under article 2. The Government are extremely hopeful in the explanatory notes. They say that they do not imagine the court will find a breach of article 2. I find it impossible to understand how article 2 would not be breached under the provisions that are included in the Bill.

Q 137

Bridget Prentice: If it were someone other than the Executive who certified, would that satisfy your concerns to some extent?

Isabella Sankey: Without knowing who you are talking about, it is difficult to say. Given the concerns that the Government have, it seems that the Government want to have some sort of control in vetoing juries. So, whether it is an application to a judge or not, we do not see how the removal of juries in article 2 cases could ever be compliant. I guess that the involvement of the Executive is one of two principal concerns, along with the public scrutiny that is also required under article 2. So, Executive involvement and the lack of any kind of public scrutiny in the process would be the two principal concerns.

Q 138

Stephen Hesford: Diplock courts in Northern Ireland have a judge sitting alone. Is it your view that, essentially, all the verdicts of those courts were, first, unsatisfactory and, secondly, basically unlawful?

Isabella Sankey: We believe in

Q 139

Stephen Hesford: Yes or no?

Isabella Sankey: We believe in the effectiveness of and the necessity for juries, and in due process safeguards existing in the criminal justice system and in the inquest system. That is our position.

Q 140

Ian Lucas: For the sake of clarity, are you saying that, if the Executive made an application to a judge and the judge decided whether or not there would be a jury in the case, you think that would be in breach of article 2?

Isabella Sankey: Article 2 lays down several requirements, one of which is the independence of the investigation and another is public scrutiny and the involvement of the bereaved. I am sorry if I was not clear earlier, but in answer to your question I would say yes, indeed.

Q 141

Ian Lucas: Sorry, I am still not clear. Are you saying that an application by the Executive to a judge, who would then make the decision, would be in breach of article 2?

Isabella Sankey:Yes, I think that independence would still be compromised in that scenario. Furthermore, the lack of public scrutiny and the lack of involvement by the family of the bereaved would mean that there was a double breach of article 2.

Q 142

Tim Boswell: For the record, although I may well be sympathetic to your concerns I think that I am right in saying that article 2 is silent on whether or not there should be a jury.

Isabella Sankey: Article 2 demands the involvement of members of the public and the bereaved. I do not see how that requirement could really be incorporated in this instance without a jury.

Q 143

Edward Garnier: Do you agree that what Mr. Lucas was putting to you was, although not satisfactory, marginally less satisfactory than what is in the Bill?

Isabella Sankey: Marginally more satisfactory.

Edward Garnier: You are quite right. [Interruption.] I am glad to see that everybody is listening, even the Minister. You are right. It would be unsatisfactory, or

Isabella Sankey: It would be a marginally more satisfactory amendment to a provision that is profoundly unsatisfactory.

Edward Garnier: Yes. So, if we get halfway there, you will be half-happy but not wholly happy.

Roger Gale: Are there any further questions on this line of questioning, before we move to the issue of data protection?

Q 144

David Howarth: I simply ask for the views of Liberty on the provisions in the Bill that relate to the information-sharing order.

Anita Coles: We have extreme concerns about what is being proposed in the Bill.

Roger Gale: I am sorry. Can I ask you to move up to the microphone? It is awfully difficult for the Hansard reporter if you do not move up to the microphone.

Anita Coles: We are concerned about this broad information-sharing power. The way that it is drafted at the moment is that it enables any person to share any information, which not only includes personal data but other data such as company information, simply by ministerial order. Basically, we feel that that could override all the protections contained in the Data Protection Act. There is the ability for the order to modify any enactment, which basically means the ability to amend or appeal any Act of Parliament by ministerial order. We think that the use of secondary legislation in this way is problematic and that secondary legislation can enable the overriding of protections that are currently contained in the Data Protection Act, and potentially enable the overriding of the Human Rights Act.
We are concerned about the breadth of the order. Many aspects of peoples lives are included in personal data: medical information, DNA, genetic information, company records, personal confidential information. The order can override, remove or modify any prohibition or restriction on the sharing of information. Potentially, that could include confidential information, common law protections and professional privilegethere is no end to the possibilities. On the face of it, the way it is drafted, there are no restrictions in any way apart from that of securing a Government policy objective, which could be anything. It must be proportionate, but only proportionate to that objective, so there is not a proportionality argument generally. It must also strike a fair balance between the public interest and the interests of the persons affected, but that balances the greater good against the single individual. It is always hard to show that the single individual overrides the public interest, but there is the aggregate as to how many people are affected.
We are not opposed to data sharing because there are instances where it is enormously important, but the Data Protection Act seeks to ensure that there are safeguards surrounding this. The Human Rights Act is also importantarticle 8, the right to privacy. If you wish to be able to share information that you obtained for a different purpose you should, through an Act of Parliament, say exactly what your purpose is, because on the face of it we do not know. We do not know if it is a purpose that fits within the exceptions, in order to be compliant with article 8. If the Government want to share the information in this way, they should set it out in an Act of Parliament, explain fully and have a parliamentary debate as to why it is needed.

Q 145

David Howarth: The definition of information sharing includes entirely changing the purpose for which the data were collected.

Anita Coles: Yes. The whole purpose, I think, of this order is to override the principles in the Data Protection Act. One of the principles is that if data are obtained for a particular purpose, they should not be shared for other purposes. We think that a lot of the objectives could be met through consent, so if a person consents to information being shared in this manner, that is perfectly acceptable. If they do not consent, Parliament needs to explore fully the options of how it could be shared.

Q 146

David Howarth: The Thomas and Walport report said that there was an argument, which they have accepted, for a fast-track way of allowing data sharing in some circumstances. Do you think that what is in the Bill can be cured by being tightened up or do you think that it is inherently bad?

Anita Coles: We do not see having secondary legislation amending primary legislation as a way of achieving the outcomes. We disagree with the recommendation in the first place, but we also think that this has not implemented fully what they recommended. They said that it was to be in exceptional circumstances, with more limits involved. We disagree that there should be a mechanism of having an order-making power to amend primary legislation. If there is an issue, put it in a Bill and Parliament can debate it.

Q 147

Henry Bellingham: Following that last question, we tend to understand why the Government want to bring in clause 151, which does not contain a great deal that we have problems with. Clause 152 is extremely wide-ranging and is going to lead to a great deal of power being given from the private sector to the public sector and vice versa. Following on from Mr. Howarths question, clause 152 is long and it would be my instinct to try to strike it out completely, but is there any way, short of that, that it could be improved? Could it be amended in any way? One of the problems to which Mr. Howarth alluded is that it will trigger quite a few opportunities for statutory instruments, which cannot be amended. Is there any way in which the clause as it stands could be improved? Would it be your intention to suggest amendments to it, or do you take the view that it is totally beyond the pale and needs to be struck out completely?

Anita Coles: We disagree with it in principle, in the sense that allowing secondary legislation to amend primary legislation in this way is very problematic. While, of course, anything can be made a bit better, we disagree in principle that it should be included in this Bill at all. There are no safeguards that I can see and the principle behind it is just wrong.

Q 148

Henry Bellingham: How would you improve it if that is your fall-back position?

Anita Coles: It is not improvable. It should not be included in the Bill. It should be removed. It breaches article 8 in the sense that the purposes are not set out in the Bill. We do not know what reasons will be used for sharing this information. They are not set out. As they are not set out, you cannot decide whether they fall within the exceptions under article 8. Until you know those purposes, you cannot say that something is compliant with the article.

Q 149

Henry Bellingham: To be fair to the Government, we have agreed with them that, with regard to some categories of data, sharing is beneficial, and our lives and the lives of our constituents could be made better, safer, healthier and so on through the sharing of information. It is a question of how you isolate those examples and separate them from a mischief that could be caused by other data being shared.

Anita Coles: The Government already know a lot of the areas where there is a problem. So if there is an identifiable problem, it should be set out in the Bill so that you can see what it is, agree and debate it and decide whether the power is necessary. The Government should come forward and say that these are the areas where they have an issue. If they come up with others later, they could introduce another Act to deal with that. The Data Protection Act already has a lot of exceptions built into it to deal with all different types of information. We do not see why this power is necessary. Acts are amended all the time to include information-sharing powers. We think that if this is necessary it should continue, and privacy impact statements should be included to see what the problems are. The issue is that the public are not on board with what the Government want to do, in the sense of sharing information for purposes for which they did not provide it. They do not necessarily trust the Government to hold their information. Allowing not just the Government but private companies or any person at all to share their information, with no real restrictions, is unnecessary and wrong in principle.

Isabella Sankey: As my colleague, Anita, has highlighted, if there are specific examples that the Government can identify where they believe information sharing is required, they should bring those out in the Bill, or another piece of legislation. They should include their purposes, the people who would be able to share the information and all the necessary detail, to see what the Governments intentions are and whether they are proportionate.

Q 150

Tim Boswell: I wonder whether I can take this to the practical level and be clear. You have explained your objections in principle. Do you also anticipate that there may be damage or difficulty in practice if these clauses are accepted? If so, could you give us some examples?

Anita Coles: The problem is that we do not know what these order-making powers will be used for. The Government say that they will have perfectly benign purposes. That may well be the case, but obviously if this becomes legislation it will be for any future Government to use as they will. We do not think that order-making powers should be given so broadly, just trusting that the Government will use them benignly. The national identity register will come into force soon with piles of information on people. That could be shared with companies. You could get sharing between private companies and between banks and credit card companies for TV licensing. Peoples medical records could be shared for research purposes. The British Medical Association has expressed its concerns about the potential for private and confidential medical information being shared. You could go on and on as to what they could be used for.

Q 151

Tim Boswell: A subset of concerns exists on that matter. While matters are within the public sector, there are certain obligations over and above the Data Protection Act in terms of confidentiality. At one level there is the Official Secrets Act. There are certain criminal procedures in the Taxes Act about the disclosure of peoples personal files. Is there a danger that as this material is available to people within the private sector under the data-sharing order, the controls that are built into legislation would be attenuated? That is point one. Point two is that if the information were further disseminated within the private sector, perhaps improperly or outside the terms of the order, it would leak out widely and become public knowledge.

Anita Coles: Yes, there are protections in a lot of other legislation but there is the power here for an order to modify any enactment, which could mean that it could amend any other safeguards. There is already the potential for those safeguards not to apply. We also have problems, as we have seen, with the Governments handling of sensitive information. We have seen losses, and the more the information is disseminated the more potential there is for it to go missing or for other problems to arise. We think that extending the measure even further, including extending it to potentially require private companies confidential commercial information to be distributed, is not necessarily helpful.

Q 152

Tim Boswell: I presume that it could even come back in court proceedings if they had acquired it illegitimately.

Anita Coles: There is nothing to say that it could not. Nothing in the Bill states how the order is to be monitored. The Information Commissioner does not necessarily have any powers to monitor the carrying out of the order and how it is effected. The code of practice in clause 153 will not necessarily apply to the order because the order can modify anything, including the code of practice.

Q 153

Edward Garnier: Do you agree that behind all this stuff in part 8 to do with data sharing, there are some concerns? First, the Government have an appalling record on the keeping of private data private. They have lost millions of pieces of information over the past few years. The public ought to be allowed to press the Government on that.
Secondly, I am glad, Miss Coles, that you mentioned the Identity Cards Act and the national identity register. On that Bill, in 2005-06, we had, from my point of view, utterly fruitless discussions about the register. It became clear that the Government would require huge volumes of private information to be stored on that register, and that that information would be shunted about between Government agencies and also potentially, according to the Office of Government Commerce, between 40,000 private companies about whom the public would have no knowledge. The movement of that information could not be audited by the public. So here we have something that is designed for the convenience of the Government rather than for the protection of the citizen. Do you not see in part 8, as well as in other legislation such as the Identity Cards Act, a rather hideous shift in the balance between the state and the individual, a balance that we as legislators ought to be extremely careful to protect?

Anita Coles: Yes. I think that you have put it well, in that to start with we are very concerned about data loss, the security of peoples private information and the erosions of privacy over the past couple of years. Liberty has been concerned about the national identity register and ID cards ever since they were proposed. We think that they alter the relationship between the individual and the state. There is now the presumption that we have to share all our information rather than being able to keep something private unless it is required. Everything has to be shared. The limits are expanding and there are problems with how they have expanded over the past decade or so. So this is just part of that process and we are seriously concerned about it.

Q 154

Edward Garnier: Do you shareI think that you domy concern that the way in which the legislation, particularly in part 8, is constructed provides Ministers with the power to make legislation without proper scrutiny by either House? Have you noticed the growing habit of Government Departments to create legislation within which they give themselves powers to create secondary legislation? Here we have a particularly egregious example because this is secondary legislation that amends primary legislation. Does your organisation find that worrying?

Anita Coles: It is very worrying that secondary legislation can amend primary legislation. The point is that Parliament is meant to be involved in making legislation and that any amendments to it should go through a proper parliamentary procedure where it is properly debated. The use of Henry VIII clauses where primary legislation can be amended through secondary legislation is extremely concerning. There has been far too much of it in the last few years. Parliament itself should be concerned about that.
Order-making powers are used by the Executive, whereas legislation should be made by Parliament. Obviously such measures are subject to the affirmative procedure, but that means that Parliament cannot amend the proposed orders. Parliament may agree with 90 per cent. of what is in the order and not the other 10 per cent., but it has no way of amending it. Parliament may then consider on the basis of a very short debate that it is better just to pass the order so that certain laudable objects go through rather than oppose it so that the matter that it is concerned about does not. We think that Parliament should have the ability to decide what legislation should be amended.

Q 155

Edward Garnier: Do you also agree with me that we are highly unlikely to see any of these orders in draft before the Bill is enacted? We are therefore being asked to give the Government powers to create secondary legislation to do all sorts of things that we may or may not approve of through a procedure that we may or may not approve of without knowing precisely what powers the Government will take unto themselves. Is that not equally worrying?

Anita Coles: The problem with having legislation that would enable such broad-ranging powers is that you will never know what it will be used for in the future. If it is passed, the Bill will be on the statute book for who knows how long. You will never know what powers will be used until the orders are made, at which point Parliament does not have an amendment process or a full debate on the issues involved. Even if you saw some draft orders now, it would not be sufficient because we do not know what orders might come up in 10 years.

Roger Gale: We have three minutes left of this session.

Q 156

George Howarth: One of the witnesses earlier invoked public opinion and said that they thought it was opposed in principle to the use of data sharing. Was it Miss Sankey who said it?

Isabella Sankey: We have found, as an organisation that does a lot of work on privacy and rights in this area, that the public are becoming more and more concerned about the way in which their information is held by Government, who has access to it, and the security of it.

Q 157

David Howarth: Thanks, that is a helpful clarification. Do you accept that public concern about data sharing is practical rather than a matter of principle? They are afraid that personal data will be lost, which we have seen some examples of in Government Departments, or that it might be used inappropriately. Do you accept that in cases where it helps to pursue somebody involved in serious organised crime, the public would probably take an entirely different view of the use of data sharing?

Isabella Sankey: Absolutely. The example you gave is in an area in which information can be passed without consent. There is no question that in certain circumstances, for the prevention and detection of crime, information can be shared. We see that between different policing bodies all the time.

Q 158

George Howarth: So it is not an absolute principle then.

Isabella Sankey: Well, there is a principle that information needs to be shared only where it is necessary and proportionate. In that sense, the principle is absolute.

Q 159

David Howarth: But it is a qualified principle, is it not?

Isabella Sankey: Of course, privacy is qualified, as are most of the rights in the Human Rights Act. That does not mean that an order-making power that asks you to rely on the Government striking that balance themselves in any given situation without the scrutiny of Parliament will be okay. The proportionality as to when and how information can be shared is something that must be scrutinised by Parliament.

Q 160

George Howarth: You put it to the Committee earlier that it is an absolute principle.

Isabella Sankey: Liberty would never say that privacy is an absolute principle. We said that the public are concerned about their privacy, which is entirely different from saying that privacy is absolute.

David Howarth: Well, the record will show differently.

Roger Gale: Order. I am sorry to interrupt, but the Committee has decided that this session must end at 6.15 pm. Anita Coles and Isabella Sankey, thank you very much. The Committee has benefited from your advice and information, and we are indebted to you. I hope that you have a safe journey home. Can we call the next witnesses please, as quickly as possible?

Roger Gale: Order. Let us welcome Barbara Esam from the National Society for the Prevention of Cruelty to Children, Martin Narey, chief executive of Barnardos and Peter Robbins, the chief executive of the Internet Watch Foundation. Thank you for joining us and giving us your time. I will ask Jenny Willott to open the questions.

Q 161

Jennifer Willott: I have got a couple of questions about the provisions in the Bill that relate to child pornography and images of child sex abuse. First, I would be grateful if one of you could tell us what evidence there is that harm is caused by people owning non-photographic depictions of pornography involving children.

Roger Gale: Who would you like to respond? Put a question to somebody.

Jennifer Willott: I do not mind. When there are photos of children being abused, it is very clear that abuse has taken place and that there is a victim. However, when it is a non-photographic image and no direct victim has been affected, the purpose of making that illegal would be because looking at such pictures causes some sort of behaviour change, which then causes harm. I would be grateful if you could provide any evidence to back that up in respect of why looking at such pictures should be made illegal, given that there is no direct victim. Does that make sense?

Martin Narey: That is not a subject about which I am able to advise the Committee. I understood that I was here to speak about the sentencing council provisions. I am afraid that I know very little about that subjectI did not expect to be asked about it.

Barbara Esam: I am afraid that I am in the same position. This is my first day back from holiday and I expected to be asked about young witness issues. There are other people within the NSPCC who are briefed on that, but I am not one of them. I apologise for that. I can certainly get a written response from the NSPCC.

Jennifer Willott: That would be great.

Barbara Esam: I understand that there is generally considered to be a process whereby paedophiles escalate their activities. There is therefore a concern about that type of material, even where there is no victim. It would be more appropriate for me to ask another member of the NSPCC who has been dealing with that issue directly, as I have not been.

Q 162

Jennifer Willott: I have a question about the distinction between possessing and viewing images, which is probably most relevant to Mr. Robbins. The Bill deals specifically with the possession of certain types of images, but as I understand it, one of the biggest areas of development is that people can go online and view those images therethey do not necessarily have to physically possess them. With regard to the internet, should a distinction be made, and does that need to be clarified, so that it is possible to prosecute?

Peter Robbins: The Protection of Children Act 1999 includes the making of an image as an offence, and generally speaking the law prosecutes people in such cases with the offence of making indecent images of children, but that does not apply in this case because the Government obviously intend to make possession an offence. That mirrors the recent legislation relating to extreme pornography, as the Government were faced with the fact that there are many thousands of websites of that type outside the UKwe very rarely find any of those sites hosted in the UK.
The Government decided that there needs to be a strategy for dealing with the possession of those images. That cannot be handled with a global partnership approach for taking down and removing those images, because in many countries hosting extreme pornography and computer-generated images is not a crime. We do not have a partnership with other countries that would allow us to do something about it, unlike the indecent images, which we can do something about. That is why there is a distinction between the offence of possession, which the Government propose in the Bill, and the offence of making an indecent image, which is what applies in a real trial.

Q 163

Jennifer Willott: If the harm is done by looking at the images, do you have concerns that the offence will mean that people will simply not possess the images, but would still be able to look at them?

Peter Robbins: That becomes a legal argument about what is tantamount to a possession offence on a computer device. If you keep something you have downloaded, it becomes a possession offence and you can be prosecuted for it. If you are accidentally exposed to it and then delete it, that is fair enough and no one would expect you to be prosecuted. However, if you regularly download such material and continue to delete it, your computer history will show that and you will be prosecuted. Constructive possession on a device can be proved by forensic analysis.

Q 164

Madeleine Moon: I have two separate questions. The first is for the NSPCC and Barnardos, and it relates to the deaths of children and the capacity for coroners to exclude the media from inquests. Parents have complained to me that if a child commits a criminal offence, the details are confidential, but if they take their own life, their history and death are exposed in the media. The parents felt that there is an injustice in that. What is your view?

Barbara Esam: The NSPCC shares that concern. We think that families have a right to privacy in such situations. We would like the family at least to be asked what their position is on it and to be given an opportunity to make representations to ensure that their details are kept private.

Martin Narey: I am afraid that, once again, I do not know enough about the issue to comment on it. It is not an issue on which we are lobbying. Indeed, we are not lobbying on the Bill at all.

Q 165

Madeleine Moon: My second question is for the IWF and relates to encouraging or assisting suicides. You have some experience in controlling images that appear on the internet and are one of the few organisations dealing with matters of control of information and data on the internet. What is your view on the legislation and how do you see it being best implemented?

Peter Robbins: I have not studied the provisions in the Bill that relate to suicide, because I listen to other organisations, such as Papyrus and the Samaritans, which have done a considerable amount of work in that area. I take an interest in the work that they do, but it is not part of our remit, which is to deal with child sexual abuse content and obscene content. Suicide websites, however, do come across our radar, as indeed do many other topics that relate to illegality in connection with anorexia, bulimia and other things. We have tried to keep a focus around illegality. We do not deal with inappropriate content as suchour remit is the illegal.
In terms of suicide websites, if there are such thingsI have not looked into that detail to be able to sit here and say that they would fail the testbut speaking as a representative of a notice and take-down organisation, we are not sure that there are any of those websites in the UK. If there were, they would be something that internet service providers would actually take a view on and remove anyway. If they are abroad, and I am told there may be some, then it would be important to have a partnership with a body we could refer things on to. We cannot issue notices to take down content in other countries jurisdictions.
It would be important, as it is with indecent images of children, that we have hotlines in other countries which would mirror our legislation and our activities, so we could have that content tackled, either by police investigation or notice and take-down to the internet service provider or the service provider. The issue of suicide websites and the question whether the law is correct or needs to be clarified are important, but I would say there are difficulties in terms of how you deal with it outside the UK.

Q 166

Edward Garnier: I wonder whether I could ask Mr. Narey about the sentencing questions, both from your current position within Barnardos and also from your earlier experiences as someone who played an important role within the Prison Service. I am concerned by the clauses in the Bill which deal with the setting up of the sentencing council. You will perhaps realise that the sentencing council guidelines must be followed, if this Bill goes through as currently drafted.
Clause 107 states:
Every court must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offenders case, and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function.
There is then a little let-out that states:
unless the court is satisfied that it would be contrary to the interests of justice to do so.

[Interruption.] I am sure that the Minister can cross-examine once I have finished asking these questions.
There does not seem to be much discretion left there, but the position becomes in my view, more worrying when one adds clause 107 to clause 109, which deals with Resource implications of guidelines. We are told that the council has to publish draft guidelines under the earlier clauses. As well as issuing other documents, the council must publish a resource assessment in respect of the guidelines, which will deal with
the demand for prison places, the resources required for probation provision, and the resources required for the provision of youth justice services.
Presumably, those resource implications and assessments are to be published for a purpose, namely to influence the sentencer. Do you think that this is a proper way to construct a sentencing regime, or are you concerned about what impact the Bill, as drafted, will have in relation to the sentencing council?

Martin Narey: My understanding of the Bill and certainly, the intention of the working party that made the recommendations to the sentencing council, of which Mr. Howarth and I were both members, was very clear. Discretion should be retained and judges, in the interest of justice, should be able to depart from a guideline for particular reasons. However, it was considered and agreed by the working party that the guidelines should have rather more force than the current guidelines for the sentencing guidelines council. The provision of discretion was central to the working partys conclusions.
On the second point, about resource implications, while I very much welcome the conclusions of the working party, when I was a civil servant and advising various Home Secretaries, my advice was, and the agreements made with the previous Lord Chief Justice were, that we should go further to restrain the use of custody. That was not necessarily to drive the prison population down, but to put the Prison Service in a position in which it could reasonably plan for the decent care and perhaps even rehabilitation of those in its care. Personally, I regret that the new council will not have to take account of the penal and probation resources at any one time.

Q 167

Edward Garnier: I think that you know this already, but let me say in parenthesis that I think the purpose of prison should be not only to lock someone up for the period of the sentence, but to reform, to rehabilitate, to educate, to get people off drugs and all the other positive things that do not seem to happen enough in the present overcrowded prison estate. I was very fortunate that Mr. Howarth came with Lord Justice GageI do not think that you were able to come, Mr. Nareyto give a presentation to the Opposition justice team last summer, which was very useful. Are you saying that what we now have in the Bill meets some of, but not all of, your hopes, or does it contradict some of the things that you had hoped for?

Martin Narey: The answer is that I think that it goes some way towards what I would have preferred the working party to recommend. I know your view on prisons, and I know that you consider rehabilitation to be important. In my view, the reality is that many people whom we send to prison go for such short periods that any form of rehabilitation is impossible. There are others we send to prison who, if we were using the place more coherently, would stay rather longer to ensure that we had effected rehabilitation or at least a reduction in dangerousness. I had hoped that the council might have gone further and taken greater hold of those whom we send to prison, as opposed to those whom we put on community sentences.

Q 168

Edward Garnier: Do you think that the resource assessments ought to be studied more carefully by the Ministry of Justice than by sentencers? It ought to provide the facilities to accommodate those who need to go to prison and to provide the resources, through the probation service and other community punishment sources, for those who do not need to go.

Martin Narey: I am sure that ex-colleagues in the Ministry of Justice will study the resource assessments carefully. Rather than the courts or the sentencing council simply telling the Government what resources are neededalthough they may still do it in future yearsI would prefer that in any one period they try to manage within the current constraints of prison and probation places. Why we ration almost every other public service, primarily health, but we have no rationing of penal or probation resources has always puzzled me. The result is that prisons are considerably less effective than they might otherwise be.

Q 169

Edward Garnier: I can see that. Are you therefore suggesting that there could be circumstances in which in year X, because of resource constraints, for example, defendants who might have been sent to prison the year before would not be, not because the justice of the case does not require it, but because there is simply no room in the prison estate? The following year, by which time another few hundred places might have been provided to the Prison Service or there was better provision of community punishment systems, a defendant who committed the same offence on broadly the same factual basis could go to prison, because the estate was in a better position to receive that prisoner. Are we not in danger of creating a form of inconsistency in sentencing?

Martin Narey: I understand your concern, but I am confident, from the tone of the report and everything that the chair of the committee said that there is an absolute determination in every individual case to ensure that the judge or magistrate is able to take the decision and give the sentence that they feel is appropriate.
A greater danger is that, if sentencing guidelines do not have to pay any attention to the resources that the Government of the day decide to dedicate to prisons or probation, there could be a significant dislocation.

Q 170

Edward Garnier: Let me give you a current example. I have been told that magistrates in Staffordshire are not able to send defendants on community sentence programmes because they are full up. As a consequence, the magistrates are sending to prison people who they believe ought not to go to prison. They are sending people to prison for six-month sentences or less when they would be better dealt with and more positively and progressively dealt with outside prison and under the supervision of the probation service. That is happening now. How do you think the Bill will help to provide more resources?

Martin Narey: I do not know whether it would be a matter of providing more resources. I realise that this is politically difficult, but I think that there is a good case for putting a limit on the amount that we spend on prisons particularly, but also on probation. I am genuinely staggered at that example. In my 23 years working with offenders, I do not think that I have ever come across a situation in which the court has given a more severe sentence because of capacity problems. Many cases have gone the other way.
I remind the Committee that, until 1982, a child of 17 or under could not be sent to a detention centre unless there was a place. The clerk of the court phoned a detention centre every day to ask whether there was a place. If there was not, the court did something else. The world did not come to an end. We just accepted that we should have a limit on the number of children in custody. I would be delighted if we returned to that principle.

Q 171

Edward Garnier: I am afraid that the Staffordshire example is a true one. In my experience sitting as a recorder in Nottingham in the summer of 2008, instead of starting their sentences at once, those sentenced to community sentences occasionally had to wait for three or four months before a place on a community punishment course became available. That creates all sorts of difficulties and prevents the offender from having the incentive to get on with work. One can physically see when the prison estate is overcrowded, but not when the community punishment system is overcrowded. That is the problem that we face.

Martin Narey: The answer is that you must flex resources. That is not for me any more; three or four years ago it would have been. The head of the National Offender Management Service or the Justice Secretary need to ensure that resources are redistributed, so that there are extra facilities in the community sector. It is nonsense to send anybody to prison who the court determines is suitable for a community penalty.

Q 172

George Howarth: I have a couple of quick points before I get on to a slightly larger issue. Do you agree that the principle of consistency is even more important when dealing with young people than with older offenders?

Martin Narey: I agree.

Q 173

David Howarth: Secondly, do you agree from your experience at Barnardos and in previous incarnations that it is important to have an element of predictability about not only the number of cases going through, but the seriousness of those offences and the sentenceswhether community or custodialthat they are likely to attract?

Martin Narey: Accepting that you should always allow significant discretion for individual cases, I agree with that, too.

Q 174

George Howarth: That leads me to a further point. Do you agree with me that Mr. Garnier was wrong to dismiss as unimportant the qualification that what happens must be in the interests of justice? It is a very important qualification indeed.

Martin Narey: Certainly, the working party saw it as such. The working party was clear that there should be no restraint on an individual judge or bench of magistrates in an individual case.

Q 175

David Howarth: Unless that was in the interests of justice.

Martin Narey: Yes.

Q 176

George Howarth: Finally, can you confirm one of the conclusions that we arrived at, which was that insufficient data are available at the moment to enable the Ministry of Justice or anybody else to predict with any certainty the correctional capacity, to use a phrase that my ministerial colleague finds slightly ugly? Do you agree that there are insufficient data to predict with any certainty what the capacity of the Prison Service, the young offenders service, the probation service or community sentences needs to be in 12 months time, or two or three years time?

Martin Narey: The data are imperfect and I welcome the commitment to improve the quality of data gathering, but I think that we have sufficient data to make a reasonable fist of judging what will be the outcome of certain sentencing guidelines. When I was a member not of the working party, but of the original Sentencing Guidelines CouncilI am sorry, but technically, because I was a civil servant, I was an observer on that councilwith the help of statisticians from the Home Office, it was able to adjust sentencing guidelines to try to ensure that their consequences would be neutral in terms of prison places. It might not always have got that right, but I think that it got it reasonably correct, and it is better, in my view, that it does that, rather than producing guidelines that bear no relevance to the resources that the Government of the day are able to dedicate to prison places, for example.

Q 177

David Howarth: Would you agree that it is right to say that if you do not balance the sentences that are handed out with the correctional capacity to deliver those sentences, there should be a safety valve somewhere in the system that inevitably leads to early release schemes?

Martin Narey: I agree with every word of that, Mr. Howarth. Moreover, it also means that prisons cannot achieve what they can. I spent seven years leading the prison and probation services and failed, on any significant level, to make them genuinely rehabilitative. I believe to this day that prisons could be decent, caring, compassionate and rehabilitative institutions, but the pressures of numbers invariably mean that they are failing institutions.

Q 178

Edward Garnier: Where do you think the pressure is currently coming from? I fully understand that it is sensible for a Government and a Department to know what impact sentencing is having on its prison estate and the probation service, and I fully understand that it is sensible for a Government to plan on the basis of evidence and sensible projections for what will be needed in years to come. You cannot just create a prison or employ 1,000 new probation officers at the drop of a hat. But is the Bill in danger of confusing us by bringing resource assessments into a part of a Bill that deals with sentencing guidelines?
Is not the resource matter something for the Executive to think about, and is not sentencing, through the courts, to be dealt with independently of what the resource implications are? I am not suggesting that people should be sentenced inappropriatelyto come back to the Staffordshire case, I think that that is a poor example of how we sentence peoplebut, surely, if the courts are to do their job and are to have genuine discretion, the resource part of the equation must be settled by the Government and the Executive outside the courtroom. It is for the court to deal with the appropriate sentence, given the resources provided for it by the Executive.

Martin Narey: I do not agree with that, Mr. Garnier. I do not understand why, in a world where we expect consultant physicians to operate within the investment available to run the health service and to make decisions based on clinical need where we have waiting lists, there is no rationing whatsoever in the realms of prison and anyone sent to prison today must be absorbed, no matter what the consequences for the effective running of those institutions. I think that it is for the Government to determine the resources that they will dedicate to any public service. In this case, while having the freedom to say that those resources are inadequate, it is for judges at any particular time to match sentencing to those resources. I realise that that is an unpopular view, but I believe that we would have a much more effective criminal justice system if we had that in place.

Q 179

Edward Garnier: I do not mind if it is unpopular; I just want to see how it will work. If it is unpopular and it works for the benefit of the public and the criminal justice system and for the betterment of offenders, so much the better. Can you give me one or two practical examples of how you see it working, because I appreciate that, traditionally, courts sentence people irrespective of available resources and leave it to the Government to find, or not, the requisite places. How do you see a judge in Kingston Crown court in outer London sentencing on the basis of a resources estimate?

Martin Narey: The guidelines would give the judge or magistrate some direction about what appeared to be the proper sentence in a particular case. They would adjust it, depending on the circumstances, and the working party carefully avoided recommending any rigid sentencing grade. I do not shy away from the fact, however, that the judge should be influenced by what the Sentencing Guidelines Council considers appropriate in a particular case, and I think that, to some extent, there is a chance of depoliticising sentencing. For example, last year in England, we sent into custody 820 children aged 12, 13 and 14. It would have been illegal to send 760 of them into custody in 1995, so why we feel it necessary to do that now is beyond me. A good sentencing guideline would make it plain that the sentencing to custody of children as young as that should be wholly exceptional.

Edward Garnier: Have I had too much time?

Q 180

Roger Gale: Yes. I hesitate to interrupt any line of questioning, because hon. Members are here to ask questions, but we have less than 15 minutes left. There will be a Division at 7 oclock and two witnesses have scarcely had the chance to say anything at all. Mrs. Esam and Mr. Robbins, without asking you to make lengthy statements, I propose that if you wish to draw any matter quickly to the Committees attention, you had better do so. If there is time, I shall then revert to questioning.

Barbara Esam: I would like to mention a couple of matters regarding vulnerable and intimidated young witnesses. I was pleased to see the provisions on young witnesses. A review of child evidence was announced back in December 2004, following the launch of the NSPCC report, In their own words: the experiences of 50 young witnesses in criminal proceedings, which involved speaking directly to young witnesses. Out of the review, several recommendations were made, and these provisions were among them. A consultation paper was issued in June 2007, called Improving the criminal trial process for young witnesses, which came out of the 2004 steering group. The results of, and responses to, the consultation paper have yet to be published, however, and I do not understand why, given that it has been such a long time since the response period closed. That is one point.
My second point relates to a disappointment about one recommendation that was made by the steering committee, by the Pigot report back in 1989 and by the Speaking up for Justice report, which the then Home Office prepared. The recommendation was to introduce a provision that would allow young witnesses to give their cross-examination by visual recording, away from the court setting, and it has been around since 1989, following the recommendations of Judge Pigot. The Bill was an opportunity at least to pilot the provision, but I recognise that it is not a straightforward or easy piece of legislation. In fact, it is already in legislation, but section 28 of the Youth Justice and Criminal Evidence Act 1999 has never been implemented, and we are disappointed.
Having spoken to a number of young witnesses for the report that was published in 2004 and for a report that is about to be publishedwe interviewed nearly 200 witnesses across the countrywe feel that such legislation would be a very positive step for them. I am disappointed that there is not an opportunity to pilot it as a possibility.

Peter Robbins: In terms of the possession offences, the IWF does not have a role in relation to suspects or potential offenders who may be in possession of such images. That is a law enforcement responsibility. However, the definitions are important to us, if there were any websites hosted in the UK that depict non-photographic images. We urge the Committee to ensure that the law is very clear on that subject. The clearer it is, the easier it is for everybody who has to work with it.
The number of websites that are hosted abroad of a cartoon fantasy in computer generated imagery-style is significant. Therefore, the number of people who can download such images is significant as well. Cartoons and fantasy stuff are the sorts of images that children can access rather easily. Again, there is an implication for the criminalisation of young people. Should they be looking at cartoons, they could find themselves in areas in which there are particularly graphic and sadistic cartoon images.

Q 181

Jennifer Willott: You have said that you would like the law to be as tight as possible and the definitions to be really clear. Are there any definitions in the Bill that you do not think are clear enough and that you would like to see tightened up?

Peter Robbins: I understand that the desire of Government, in this instance in particular, is to catch content at the upper end of sadistic levels. There are examples of images that we have seenthe Committee is welcome to see them as wellwhere it is not clear whether or not they would fail the current test, because they show people in preparation for sex with a child depicted in a CGI image. The way in which it is described in the legislation is about sexual intercourse. There are acts preparing for and afterwards. There is a grey area in the middle involving the types of images that we can show the Committee, where you can see the difficulties in making a judgment, if such images were hosted in the UK.

Q 182

David Howarth: I want to come back to Mr. Narey on one point. It is about how this works rather than what its purpose is, although it is related to the purposes. The Bill quite rightly says that in drawing up the sentencing guidelines, one of the things that the council has to have regard to is the relative effectiveness of sentences in preventing reoffending. Mr. Michael and I share the view that in a way the most important aspect of sentencing is that reoffending is reduced, and I think that you implied something similar in your remarks. Therefore, what works is very important. What I cannot see is how that feeds into the sentencing ranges that the council will be asked to produce. From clause 103, it appears that they will be about the offenders culpability in committing the offence and the harm caused or intended to be caused by the offence, rather than the capacity of the sentence to improve the likelihood of the offender not offending in the future. How is it envisaged that restorative justice, for example, in which I am very interested, would fit into the guidelines?

Martin Narey: My understanding, which is limited on this, is that effectiveness is to be taken into account, but it is acknowledged that the potential for rehabilitation is not the only purpose of sentencing. Punishment and deterrence are also important, and the court will always take them into account.
My understanding is that once the requirements of punishment and deterrence are met, effectiveness will have some significance. I believe that the effect of thatthe way that that could workmight be a guideline that considers effectiveness. There is not much difference between, say, an eight-year sentence and a six-year sentence. Given that very short custodial sentences are almost always a waste of time and resources, a community sentence would be better. However, I accept entirely that there will always be some individuals who are sent to prison with short sentences, because the court primarily wants to deal with the need for punishment and deterrence.

Q 183

David Howarth: Is there not a danger in the way in which clause 103 is designed that what you just described will be built into the system? In that case, the court will, in effect, be required to look first at pseudo-deterrent but ineffective sentences and not at sentences which do not have a particular metric of more or less, like restorative justice, but which will protect the public better in the long term, because they will reduce reoffending?

Martin Narey: I am not a sentencer, but I think that that is how sentences are approached right now. The court has to look first at the need for punishment and deterrence, and what is appropriate for the crime based on the damage caused to the victim and so on. Only then can it look at effectiveness. In my view, that still leaves a considerable amount of scope for prison sentences in particular that might allow prisons to be used rather more constructively and thereby make a much bigger impact on crime.

Q 184

Alun Michael: I very much share David Howarths concerns, and I wonder whether you can help us. It appears that we will have a sentencing council that will be dominated by court experience and legal expertise rather than by what works. Can you make any suggestions about how we might persuade the Government to deliver into that mix people who can focus on outcomes rather than processes?

Martin Narey: There might be an easy solution. When the original Sentencing Guidelines Council was created, there was a great deal of sensitivity about my joining it, because I was a civil servant and a non-judicial member. The previous Lord Justice got around that very easily by inviting me and occasionally others to be full members of the council, but, technically, as observers. I hope that on this occasion somebody who is able to give serious advice on the effectiveness of alternative sentences will be able to take part; otherwise, I fear that we will get into a situation where sometimes the potential impact of very short sentences, for example, may be overestimated.

Roger Gale: Mr. Narey, Mrs. Esam and Mr. Robbins, thank you very much indeed. The Committee is deeply grateful to you for taking the trouble to come, particularly on a day like this, and for the information that you have provided. Thank you very much and have a safe journey home.

Ordered, That further consideration be now adjourned.(Ian Lucas.)

Adjourned till Thursday 5 February at Nine oclock.